Citation Nr: 18140413 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-21 278 DATE: October 3, 2018 ORDER Entitlement to service connection for skin tags is granted. Entitlement to VA medical treatment for a psychosis or mental illness under the provisions of 38 U.S.C. § 1702 is denied. REMANDED Entitlement to service connection for low back disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for right hand disability, to include arthritis, is remanded. Entitlement to service connection for left hand disability, to include arthritis, is remanded. Entitlement to service connection for carpal tunnel syndrome, right upper extremity, is remanded. Entitlement to service connection for carpal tunnel syndrome, left upper extremity, is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for tinea pedis is remanded. Entitlement to service connection for a respiratory condition, also claimed as shortness of breath and breathing problems, is remanded. Entitlement to service connection for a skin disorder, other than skin tags, to include sebaceous cyst, is remanded. Entitlement to service connection for headache is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, posttraumatic stress disorder (PTSD), dysthymic disorder, generalized anxiety disorder, and panic disorder with agoraphobia, is remanded. REFERRED The issues of entitlement to service connection for hyperlipidemia, gastrointestinal disability, and undiagnosed illness were raised in a March 2015 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran’s skin tags had an onset in service. 2. The Veteran did not have active service during a period of war. CONCLUSIONS OF LAW 1. The criteria for service connection for skin tags are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to VA medical treatment for a psychosis or mental illness under 38 U.S.C. § 1702 have not been met. 38 U.S.C. § 1702; 38 C.F.R. § 3.2. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to May 1989. The Board has expanded the claims for service connection for an acquired psychiatric disorder and for a skin disorder, as reflected above, in light of the evidence in the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). 1. Entitlement to service connection for skin tags is granted. The Board concludes that the Veteran has a current diagnosis of skin tags that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has a diagnosis of skin tags and reports the skin tags were present in service and since service and that he sought treatment when they got larger. See April 2012 Private Treatment Record; January 2015 Veteran’s Statement. The Veteran is competent to comment on the continuing presence of an observable medical condition such as skin tags, and has a diagnosis of the condition. There is no conflicting evidence. Accordingly, service connection for skin tags is warranted. 2. Entitlement to VA medical treatment for a psychosis or mental illness under the provisions of 38 U.S.C. § 1702 is denied. The provisions of 38 U.S.C. § 1702 allow for service connection solely for eligibility for medical treatment for mental illness under certain conditions. Under 38 U.S.C. § 1702(a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. Under 38 U.S.C. § 1702(b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability is developed within two years after discharge or release from active service or before the end of the two-year period beginning on the last day of the Persian Gulf War. In this case, the Veteran’s period of active service does not fall within a period of war. The Veteran served on active duty from May 1985 to May 1989. The period of war for the Vietnam Era ended on May 7, 1975. 38 C.F.R. § 3.2(f). The period of war for the Persian Gulf War began on August 2, 1990. 38 C.F.R. § 3.2(i). The Veteran’s period of service fell between these dates. Therefore, the Veteran is not entitled to VA medical treatment for psychosis under 38 U.S.C. § 1702(a) or treatment for mental illness under 38 U.S.C. § 1702(b). The claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for low back disability is remanded. 2. Entitlement to service connection for right knee disability is remanded. 3. Entitlement to service connection for left knee disability is remanded. 4. Entitlement to service connection for right hand disability, to include arthritis, is remanded. 5. Entitlement to service connection for left hand disability, to include arthritis, is remanded. 6. Entitlement to service connection for carpal tunnel syndrome, right upper extremity, is remanded. 7. Entitlement to service connection for carpal tunnel syndrome, left upper extremity, is remanded. 8. Entitlement to service connection for right shoulder disability is remanded. 9. Entitlement to service connection for bilateral plantar fasciitis is remanded. 10. Entitlement to service connection for tinea pedis is remanded. 11. Entitlement to service connection for a respiratory condition, also claimed as shortness of breath and breathing problems, is remanded. 12. Entitlement to service connection for a skin disorder, other than skin tags, to include sebaceous cyst, is remanded. 13. Entitlement to service connection for headache is remanded. 14. Entitlement to service connection for tinnitus is remanded. 15. Entitlement to service connection for hypertension is remanded. 16. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, PTSD, dysthymic disorder, generalized anxiety disorder, and panic disorder with agoraphobia, is remanded. The Veteran underwent VA examination in relation to his claims for back, right shoulder, bilateral knee, bilateral hand, and bilateral upper extremity carpal tunnel syndrome disabilities in August 2016. In October 2016 addenda, the VA examiner opined that the Veteran’s low back, bilateral knee, bilateral hand, and bilateral upper extremity carpal tunnel syndrome disabilities were less likely than not related to service. However, the VA examiner’s rationale shows that a higher standard than the applicable at least as likely as not (50 percent or greater probability) was used in providing such opinions. The VA examiner explained that it was not more than 50 percent likely than the Veteran’s reported events in service caused an injury, and that it was just as reasonable to attribute his injury to post-service events. Moreover, the VA examiner relied on the lack of documentation of complaints in the service treatment records without adequately addressing the Veteran’s lay statements. In an October 2016 addendum, the VA examiner opined that the Veteran’s right shoulder condition is less likely than not caused by service. However, the VA examiner relied on the lack of documentation of right shoulder complaints in the service treatment records without adequately addressing the Veteran’s lay statements regarding an in-service fall down a ladder in service. Accordingly, remand is appropriate to obtain additional VA medical opinion. As to bilateral plantar fasciitis, the Veteran reported that his condition developed during service and his pain has continued since service until his diagnosis. He contends that it was developed as a result of long-term standing and walking on hard medal surfaces of the flight deck while wearing boots without arch support during service. As to tinea pedis, the Veteran has reported symptoms of itching, burning, cracking, and peeling on his feet. He reported that VA-prescribed medication helped temporarily but he continues to have the condition. He contends that the condition is from wearing boots for extended periods of time while working in hot conditions where his feet became wet from sweat and could not dry during service. As to a respiratory condition, the Veteran reports shortness of breath and breathing problems. He claims that he has such a condition due to asbestos or unknown chemicals from serving below deck in cargo holds on ships where the air quality was extremely poor, in naval shipyards while ships were undergoing maintenance, and in other various locations. He reported that dust gathered on surfaces of the ship and on his clothing. As to a skin condition other than skin tags, to include sebaceous cyst, the Veteran reported a range of skin symptoms or disorders, including rash, dry skin, skin bumps, and cyst. His service treatment records show treatment for skin issues during service. As to headaches, the Veteran reported that he has experienced minor headaches since he was hit in the head by the elbow of a fellow player during a basketball game on base. He reported that he received stitches at Long Beach Naval Hospital, and that he has had minor headaches that progressed over time. He also asserts that his headaches are secondary to the cyst on his head. As to tinnitus, the Veteran contends that his tinnitus is the result of working on the flight deck on the USS Niagara Falls and being constantly exposed to the loud noise of flight operation. He also claims that his tinnitus is caused or aggravated by medications for his psychiatric disorder. As to hypertension, the Veteran asserts his hypertension is directly related to service, falls within the presumptive period, or is secondary to a psychiatric disorder. As to an acquired psychiatric disorder, the Veteran reported that experienced a constant fear of hostile military activity during his time on the USS Crommelin during service in the Persian Gulf area. He reported that the USS Crommelin had escorted a tanker that was struck by a mine and that another ship similar to Crommelin was hit by a missile and people died. He submitted an article about such events, and a statement from his friend from service who reported that when they went to the Persian Gulf in 1989 tense activity was waiting for them. See February 2015 and May 2015 Submissions. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for bilateral plantar fasciitis, headaches, hypertension, a respiratory condition, a skin condition, tinnitus, and an acquired psychiatric disorder because no VA examiner has opined whether these conditions are related to service. In addition, the Veteran reported receiving stitches on his head at Long Beach Naval Hospital during service. It does not appear that the Regional Office conducted a search for these records. Accordingly, remand is necessary for the Regional Office to take appropriate steps to obtain such records. The Board notes that the Veteran’s claims file contains VA treatment records from April 2013 to September 2014, and from March 2015, and from September 2015. While this matter is on remand, any outstanding private and VA treatment records should be obtained, to include any additional treatment records from Dr. Tucker and Dr. Adapa and any additional VA treatment records prior to April 2013 or from September 2014 to the present. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to submit a statement regarding the onset of his tinnitus. 2. Take appropriate steps to obtain the Long Beach Naval Hospital service treatment records identified by the Veteran. 3. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, to include any additional treatment records from Dr. Tucker and Dr. Adapa. 4. Obtain outstanding VA treatment records, including any additional VA treatment records dated prior to April 2013 and from September 2014 to the present. 5. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any current low back, right knee, left knee, right shoulder, right hand, and left-hand disability, as well as upper extremity bilateral carpal tunnel syndrome disability, the Veteran has presented during the claim period (from January 2015 to the present). For each diagnosis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had an onset in service or is otherwise related to an in-service injury, event, or disease. For arthritis and carpal tunnel syndrome, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested to a compensable degree within a year of separation from service (by May 1990). The examiner should consider all medical and lay evidence of record, including the Veteran’s January 2015 submission. The Veteran reported that his symptoms began in service. He reports that he toughed it out and self-medicated. The Veteran claims that his conditions are from going up and down ladders to work in cargo holes and on the flight deck, from walking on hard medal decks, from vibrations on the ship, from driving a forklift, from a fall down a ladder during service, from working on a flight deck holding cargo slings, and from working as a storekeeper which required a lot of heavy lifting, strain on his joints, and long hours with no breaks. He reports that his conditions have worsened as he has gotten older. The Veteran reported that he has experienced pain in arms, wrists and hands since service. In a February 1988 dental health questionnaire, the Veteran reported painful joints. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). A complete rationale should be given for all opinions and conclusions expressed. 6. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should opine as to whether the Veteran’s bilateral plantar fasciitis at least as likely as not (a 50 percent or greater probability) had an onset in service or is otherwise related to an in-service injury, event, or disease. The examiner should consider all medical and lay evidence of record. A June 1986 STR notes treatment for trauma to the left foot. The Veteran reported that his condition developed during service and his pain has continued since service until his diagnosis. He contends that it was developed as a result of long-term standing and walking on hard medal surfaces of the flight deck while wearing boots without arch support during service. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). A complete rationale should be given for all opinions and conclusions expressed. 7. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should opine as to whether the Veteran’s tinea pedis at least as likely as not (a 50 percent or greater probability) had an onset in service or is otherwise related to an in-service injury, event, or disease. The examiner should consider all medical and lay evidence of record. The Veteran reported symptoms of itching, burning, cracking, peeling, and bleeding feet, and reported that VA-prescribed medication helped temporarily but he continues to have the condition. He contends that the condition is from wearing boots for extended periods of time while working in hot conditions where his feet became wet from sweat and could not dry during service. A complete rationale should be given for all opinions and conclusions expressed. 8. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any respiratory disorders the Veteran has presented during the claim period (from January 2015 to the present). For each diagnosis, the examiner should opine as to whether the disorder at least as likely as not (a 50 percent or greater probability) had an onset in service or is otherwise related to an in-service injury, event, or disease. The examiner should consider all medical and lay evidence of record. The Veteran reported shortness of breath and breathing problems. He claims that he has such a condition due to asbestos or unknown chemicals from serving below deck in cargo holds on ships where the air quality was extremely poor, in naval shipyards while ships were undergoing maintenance, and in other various locations. He reported that dust gathered on surfaces of the ship and on his clothing. An October 1986 service treatment record notes sinus congestion and problems breathing at night. In a February 1989 dental health questionnaire, the Veteran reported persistent cough and sinus problems. A complete rationale should be given for all opinions and conclusions expressed. 9. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any skin disorders other than skin tags the Veteran has presented during the claim period (from January 2015 to the present). For each diagnosis, the examiner should opine as to whether the disorder at least as likely as not (a 50 percent or greater probability) had an onset in service or is otherwise related to an in-service injury, event, or disease. The examiner should consider all medical and lay evidence of record. The Veteran has reported a range of skin symptoms or disorders, including rash, bumps, dry skin, and cyst. The Veteran reported that he has had a sebaceous cyst for a long time. The Veteran’s service treatment records show treatment for skin issues during service. A September 1987 service treatment record notes facial itching and skin dryness. A complete rationale should be given for all opinions and conclusions expressed. 10. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any headache disorders the Veteran has presented during the claim period (from January 2015 to the present). For each diagnosis, the examiner should opine as to whether the disorder at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; or (c) is caused by or aggravated by his sebaceous cyst. For any migraine diagnosis, the examiner should opine as to whether the disorder at least as likely as not (a 50 percent or greater probability) manifested to a compensable degree within one year of separation from service (i.e., May 1990). The examiner should consider all medical and lay evidence of record. The Veteran reported that he has experienced minor headaches since he was hit in the head by the elbow of a fellow player during a basketball game on base, which have progressed over time. He reported that he has had 1-2 headaches per week since the in-service basketball injury and that he self-medicated using aspirin and other pain relievers during and since service. A complete rationale should be given for all opinions and conclusions expressed. 11. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should opine as to whether the Veteran’s tinnitus at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; (b); manifested to a compensable degree within a year of separation from service (by May 1990); (c) is otherwise related to an in-service injury, event, or disease; or (d) is caused by or aggravated by a psychiatric disorder, to include medications for a psychiatric disorder. The examiner should consider all medical and lay evidence of record. The Veteran contends that his tinnitus is the result of working on the flight deck on the USS Niagara Falls and being constantly exposed to the loud noise of flight operation. He also claims that his tinnitus is caused or aggravated by medications for a psychiatric disorder. A complete rationale should be given for all opinions and conclusions expressed. 12. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should opine as to whether the Veteran’s hypertension at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; (b); manifested to a compensable degree within a year of separation from service (by May 1990); (c) is otherwise related to an in-service injury, event, or disease; or (d) is caused by or aggravated by a psychiatric disorder. The examiner should consider all medical and lay evidence of record. The Veteran asserts his hypertension is directly related to service, falls within the presumptive period, or is secondary to a psychiatric disorder. A complete rationale should be given for all opinions and conclusions expressed. 13. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any acquired psychiatric disorders the Veteran has presented during the claim period (from April 2013 to the present), to include major depressive disorder, PTSD, dysthymic disorder, generalized anxiety disorder, and panic disorder with agoraphobia. For each diagnosis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had an onset in service or is otherwise related to an in-service injury, event, or disease. For any diagnosis of substance abuse disorder, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is caused by or aggravated by a psychiatric disorder. The examiner should consider all medical and lay evidence of record. The Veteran reported that he experienced a constant fear of hostile military activity during his time on the USS Crommelin during service in the Persian Gulf area. He reported that the USS Crommelin had escorted a tanker that was struck by a mine and that another ship similar to USS Crommelin was hit by a missile in 1987 and people died. He submitted an article about such events, and a statement from his friend from service who reported that when they went to the Persian Gulf in 1989 tense activity was waiting for them. See February 2015 and May 2015 Submissions. A complete rationale should be given for all opinions and conclusions expressed. 14. After the above development, and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel